U.S. RAILROAD RETIREMENT BOARD CHICAGO, ILLINOIS and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 375, AFL-CIO

UNITED STATES
OF AMERICA

FEDERAL LABOR
RELATIONS AUTHORITY

Office of
Administrative Law Judges

WASHINGTON,
D.C. 20424-0001

MEMORANDUM
DATE: September 11, 2007

TO: The
Federal Labor Relations Authority

FROM: PAUL B.
LANG

Administrative Law Judge

SUBJECT: U.S.
RAILROAD RETIREMENT BOARD

CHICAGO,
ILLINOIS

Respondent

AND Case
No. CH-CA-07-0340

AMERICAN
FEDERATION OF GOVERNMENT

EMPLOYEES,
LOCAL 375, AFL-CIO

Charging
Party

Pursuant to
section 2423.34(b) of the Rules and Regulations 5 C.F.R.§2423.34(b), I am hereby transferring the above case to the
Authority. Enclosed are copies of my Decision, the service sheet,
and the transmittal form sent to the parties. Also enclosed are
the transcript, exhibits and any briefs filed by the
parties.

Enclosures

UNITED STATES
OF AMERICA

FEDERAL LABOR
RELATIONS AUTHORITY

Office of
Administrative Law Judges

WASHINGTON,
D.C. 20424-0001

U.S.
RAILROAD RETIREMENT BOARD

CHICAGO,
ILLINOIS

Respondent

AND

AMERICAN
FEDERATION OF GOVERNMENT

EMPLOYEES,
LOCAL 375, AFL-CIO

Charging Party

Case No.
CH-CA-07-0340

NOTICE OF TRANSMITTAL OF
DECISION

The
above-entitled case having been heard before the undersigned
Administrative Law Judge pursuant to the Statute and the Rules and
Regulations of the Authority, the undersigned herein serves his
Decision, a copy of which is attached hereto, on all parties to the
proceeding on this date and this case is hereby transferred to the
Federal Labor Relations Authority pursuant to 5 C.F.R.§2423.34(b).

PLEASE BE
ADVISED that the filing of exceptions to the attached Decision is
governed by 5 C.F.R.§§2423.4041, 2429.12,
2429.212429.22, 2429.242429.25, and 2429.27.

Any such
exceptions must be filed on or before

OCTOBER 15,
2007, and addressed
to:

Office of
Case Control

Federal
Labor Relations Authority

1400 K
Street, NW, 2ndFloor

Washington,
DC 20424-0001

PAUL B.
LANG

Administrative Law Judge

Dated:
September 11, 2007

Washington, DC

OALJ 07-22

FEDERAL LABOR
RELATIONS AUTHORITY

Office of
Administrative Law Judges

WASHINGTON,
D.C.

U.S.
RAILROAD RETIREMENT BOARD

CHICAGO,
ILLINOIS

Respondent

AND

AMERICAN
FEDERATION OF GOVERNMENT

EMPLOYEES,
LOCAL 375, AFL-CIO

Charging Party

Case No.
CH-CA-07-0340

Gary Stokes,
Esquire

For the
General Counsel

Eric T.
Wooden, Esquire

For the
Respondent

Before: PAUL
B. LANG

Administrative Law Judge

DECISION

Statement of
the Case

On December 28, 2006, the American Federation of
Government Employees, Local 375, AFL-CIO (Union) filed an unfair
labor practice charge (GC Ex. 1(a)) against the U.S. Railroad
Retirement Board, Chicago, Illinois (Respondent). On May 7, 2007,
the Regional Director of the Chicago Region of the Federal Labor
Relations Authority (Authority) issued a Complaint and Notice of
Hearing (GC Ex. 1(b)) in which it was alleged that the Respondent
committed unfair labor practices in violation of §7116(a)(1), (5)
and (8) of the Federal Service Labor-Management Relations Statute
(Statute) by failing and refusing to provide the Union with
sanitized copies of application material submitted by external
candidates for certain positions as Claims
Examiners.1/ It was

also alleged that the Respondent had violated
§7114(b)(4) of the Statute. The Respondent filed a timely Answer
(GC Ex. 1(c)) in which it admitted all of the factual allegations
in the Complaint, but denied that it had committed any unfair labor
practices.

A hearing was
held in Chicago, Illinois on July 3, 2007. Both parties were
present with counsel and were afforded the opportunity to present
evidence and to cross-examine witnesses. This Decision is based
upon consideration of all of the evidence as well as of the
post-hearing briefs submitted by the parties.

Positions of the
Parties

General
Counsel

The General Counsel maintains that, in making
its request to the Respondent, the Union included a valid statement
of particularized need,i.e., its desire to determine
whether the successful candidates for the Claims Examiner
positions, none of whom were selected from current employees of the
Respondent, were more qualified than the unsuccessful internal
candidates.2/ In fact, the Union had already
initiated grievances on behalf of a number of the unsuccessful
internal candidates. The General Counsel further maintains that
the disclosure of the requested information in redacted form is not
prohibited by the Privacy Act, 5 USC §552a (Act), as alleged by the
Respondent and that the Respondent has not presented any evidence
to show that the disclosure of the requested information would
violate the Act.

The General Counsel also argues that an adverse
inference should be drawn from the Respondent's failure to call
either its Chief Privacy Officer or its Chief Information Officer
as a witness.

Respondent

The Respondent maintains that the disclosure of
educational information provided by the successful external
applicants is prohibited by the Act. Therefore, the Respondent is
under no duty to provide that information. According to the
Respondent, the small number of successful candidates, eight in
all, is such that even redacted information would allow the Union
to identify all or some of the individual candidates. This is so
because the educational material, when combined with other
information already provided to the Union, such as veteran's
preference, would allow the Union to easily determine the
identities of the candidates. Accordingly, the circumstances of
this case distinguish it from decisions by the Authority which have
been cited by the General Counsel in support of the proposition
that the disclosure of redacted information from employment
applications is not prohibited by the Act.

The Respondent also maintains that it has
already provided the Union with sufficient information so as to
enable it to determine whether the internal candidates received
fair consideration as compared to the external
candidates.

Findings of
Fact

The Respondent is an agency within the meaning
of §7103(a)(3) of the Statute. The Union is a labor organization
as defined in §7103(a)(4) of the Statute and is the representative
of a unit of the Respondent's employees which is appropriate for
collective bargaining (GC Ex. 1(c), ¶¶2 and 3).

Some time in October of 20063/or before the Respondent
solicited applications, both within and outside of the agency, for
a Medicare Claims Examiner training class. On or before October
27, Kenneth Jones, the President of the Union, and James Glover,
the Executive Vice President of the Union, were called into a
meeting and informed that the Respondent intended to fill all eight
of the openings with external candidates (Tr. 13). The Respondent
subsequently posted a notice on its website with the names of the
successful applicants (GC Ex. 2).

On October 27 Jones sent an e-mail message to
Dorothy Isherwood, a management representative of the Respondent,
(GC Ex. 3, p. 3) in which he cited a portion of the collective
bargaining agreement (CBA) between the parties and requested that
some of the positions be filled with internal candidates. There
then followed a series of messages between Jones and Glover and
various management representatives regarding the selection process
(GC Ex. 3, pp. 1-3). Finally, on November 7, Henry Valiulis,
Respondent's Director of Administration, sent Glover and Jones a
message (GC Ex. 3, p. 1) to which he attached a statement by Robert
Duda, the selecting officer for the Medicare Claims Examiner
training class. According to Valiulis, Duda's statement justified
the selection of the eight external candidates. In his statement
(GC Ex. 3, p. 4), Duda indicated that:

The external candidates
identified for the Medicare claims examiner training class all have
substantially higher scores than the internal candidates on the OPM
claims examiner test. The lowest scores for the external
candidates are 90 and 89 for the ten 10-point veterans. The other
external candidates identified for selection have scores of 100(3);
97(2); 95(1). The highest score for an internal candidate was 83.
While not perfect, the test provides a gauge as to the ability of
the applicant to master this type of work.

The external candidates all have higher levels
of education. One 10-point veteran has 25 semester hours of
college; the other has an Associates degree. The other 6 external
applicants all have college degrees. One internal candidate has an
Associates degree; the others have a few hours to no college
experience. The education level is another indicator of the
applicant's ability to master a course of study, such as the
Medicare training class.

By memorandum of December 4 from Glover to
Respondent's Director of Operations (GC Ex. 4) the Union stated its
intent to request an administrative review on behalf of Jonita
Raines, who was one of the unsuccessful internal candidates.
Glover testified without challenge that an administrative review is
the first step in a grievance for non-selection. It is a request
to management to provide the reasons why the grievant was not
selected (Tr. 18). The memorandum states, in pertinent
part:

Before we file a document for that request, we
need to review documentation on her behalf so we can see if
procedural errors were committed in these selections. Since
management ended the Union's review of documentation for outside
candidates as part of the panel process some time ago, we request
all information submitted by outside candidates in their
applications for the Medicare training class including their
education levels and test scores. We have a particularized need
for this information to determine if the outside candidates were
superior candidates to the highly qualified candidates from within.
We request all documents allowed under the Privacy Act with some
documents sanitized as needed to protect the applicants privacy
rights as determined by the Supreme Court.

According to Glover, the Union wanted the requested
information only with regard to the eight candidates who had been
selected (Tr. 20).

On December 6, Glover sent an e-mail message to
Keith Earley, the Director of Human Resources, (Tr. 20,
21;

GC
Ex. 5, pp. 2 and 3) in which he stated that:

. . . we want to review all unsanitized (and
sanitized where necessary) panel material regarding the outside
candidates selected before we give the formal written requests so
we can point out possible procedural violations if they exi[s]t. .
. .

There is no evidence that the Respondent subsequently
questioned the Union as to whether it was seeking information about
all of the external candidates or only the successful
ones.

On December 7 Susan Chin, an Agency Staffing
Specialist in the Bureau of Human Resources, sent an e-mail message
to Glover, with copies to other representatives of the Union and
the Respondent, in which she informed Glover that the Bureau of Law
had advised management that they were allowed to provide the Union
with only a "sanitized certificate of eligibles showing test
scores, veterans' status and selection codes." Chin further stated
that she would prepare that information for the Union and would
inform Glover when it was ready. Later the same day Glover sent a
message to Duda with the Union's formal request for administrative
reviews for three of the unsuccessful internal candidates (GC Ex.
5, p. 1).

On December 8 the Respondent provided the Union
with a sanitized certificate of eligibles and an explanation of the
codes used to indicate agency action and veteran status (GC Ex. 6).
The names and identification numbers of the candidates are
redacted and there is no indication of whether a candidate is
internal or external.

On December 13 Glover sent an e-mail message to
Chin and Marguerite Dadabo, Deputy General Counsel, (GC Ex.
7)4/stating:

We received your
information sheet and the explanation of codes. You advised that
this is the only information that the Bureau of Law will allow the
Union or the grievants to have. The sheet provided the list of
candidates showing selected or not selected with no names or
identifying code, a rating score, and veteran status. The rating
score we believe is the score on a standard government entry test
given by OPM. Is this correct?Were the outside
candidates given the claims examiner test that was given to the
internal candidates?

In addition, the applicants should have provided
previous work experience, supervisor appraisals, educational
background, test scores for the claims examiner test, interview
scores due to the interviews conducted by Mr. Duda, and reference
checks.

We are requesting all of the above information
in a sanitized format if necessary. We have a particularized need
for this because without this information it is impossible to
compare the qualifications of the internal and external candidates
to see that the external candidates were superior to all the
internal candidates.

Please advise when this information will be
provided.

Chin responded to Glover's message on December 14,
stating:

To answer your first and
second questions, the rating scores provided for the external
candidates are their scores from taking the RRB claims examiner
test. The external candidates took the same test as the internal
candidates.

I spoke with Marguerite Dadabo regarding your
request for sanitized materials showing work experience,
performance appraisals, etc. I need to verify if you are
requesting this information for the internal or external
candidates.

If the requested material is for external
candidates, then as previously stated, that information cannot be
provided. We did provide a sanitized certificate of the eligible
external candidates, showing their test scores from the claims
examiner test. Also, there is no requirement in theNegotiated Merit Promotion
Proceduresfor the selecting officer to
keep interview notes or assign interview points.

In three memoranda dated December 18 (GC Ex. 8),
Duda informed Glover that he had completed the administrative
reviews and that he had concluded that the three employees
represented by the Union had been properly considered for the
position of Claims Examiner. Duda also informed Glover that, if
the Union wished to file grievances on behalf of those employees,
they should be filed within five working days of the date of each
memorandum.

On December 21 Glover sent an e-mail message to
Chin in which he stated, "Please advise when I can review all
appropriate panel material for insiders and outsiders to see if
procedural errors were made." Earley responded on the same day
stating that the Respondent would provide the panel material for
the internal candidates, but that there was no panel for the
external candidates. He further stated that, "Ms. Chin provided
you with all of the information we are allowed to provide for the
external candidates." (GC Ex. 9). There is no evidence that the
Privacy Act was mentioned in any of the Respondent's communications
with the Union concerning the request for information or that the
Respondent stated the specific basis for its contention that the
disclosure of some of the requested information was prohibited by
law.

Celeste O'Keefe is the Chief of Workforce and
Organizational Management in the Respondent's Bureau of Human
Resources. She testified that the only test that could have been
given to the external candidates was one that was developed by the
Respondent for Claims Examiner jobs and approved by the Office of
Personnel Management (Tr. 48). O'Keefe's testimony concerning the
weight given to educational achievement was somewhat confusing; on
the one hand she stated that education played "absolutely" no role
in the ranking of external candidates (Tr. 49), but, on
cross-examination, she acknowledged that the selecting official
(presumably Duda) stated that he "looked at" the educational level
of the external candidates (Tr. 55). Neither Duda nor any other
witness was called by the Respondent.

Upon consideration of the evidence, I find as a
fact that the educational levels of all of the candidates, both
internal and external, were considered by the Respondent, through
Duda, in the selection of the successful candidates. It is
unclear, and of no consequence, whether educational levels were
considered in the creation of the list of eligible candidates, in
the final selection from the list of eligibles or, as appears
likely, in both processes. The fact remains that Duda himself
cited the allegedly superior educational levels of the successful
external candidates in his response to a challenge by the Union (GC
Ex. 3, p. 4). The Respondent may not now suggest that this factor
was of little or no importance.

Discussion and Analysis

Adverse
Inference

The General Counsel has cited portions of
O'Keefe's testimony on cross-examination (Tr. 56-59), portions of
the Respondent's website (GC Exs. 10 and 11) and a portion of the
Respondent's regulations (GC Ex. 12) to show that the Respondent's
Chief Privacy Officer works in its Chicago headquarters and that
its Chief Information Officer is responsible for Privacy Act
matters at the Chicago headquarters. According to the General
Counsel, the Respondent's failure to call either of those officials
as witnesses warrants an adverse inference to the effect that there
is no merit to the Respondent's Privacy Act defense.

The General Counsel has correctly citedU.S. Dept. of Commerce,
etc., 54 FLRA 987, 1017 (1998) in support
of the proposition that an adverse inference may be drawn against a
party because of its failure to call a witness reasonably assumed
to be favorably disposed to that party. However, the unstated
assumption of that and similar cases is that the testimony of the
absent witness would be relevant and of some weight.

Presumably, the General Counsel would have me
draw an inference that, if the Chief Privacy Officer or the Chief
Information Officer were to testify, she would admit that the
Respondent's reliance on the Privacy Act is without merit. That
may be so, but it is also possible that those officials would
testify that they were not consulted or that they were consulted
and either authorized the Respondent's refusal to provide the
information or (less likely) that they directed that the
information be provided. Such testimony, even if admissible, would
be entitled to no weight. Regardless of who in the Respondent's
organization decided that the Privacy Act prohibits the disclosure
of the requested information, the Respondent is bound by that
decision for the purpose of this case. It makes no difference
whether the Respondent's decision was carefully considered or even
whether it was made in good faith. Alternatively, the absent
witness' defense of the Respondent's construction of the Privacy
Act would amount to no more than opinion evidence on an ultimate
legal issue that I must resolve. While the testimony of the absent
witnesses might have been embarrassing to certain of the
Respondent's representatives, it would have had no bearing on my
decision. Accordingly, I will not draw the adverse inference
requested by the General Counsel.

The Legal
Framework

Section 7114(b)(4) of the Statute provides that
the duty of an agency to negotiate in good faith includes the
obligation:

. . . to furnish to the [union], upon request
and,to the extent not
prohibited by law, data-

(A) which is
normally maintained by the agency in the regular course of
business;

(B) which is
reasonably available and necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining; and

In order for a union to invoke its right to
information under §7114(b)(4) of the Statute, it must establish a
particularized need by articulating, with specificity, why it needs
the information as well as a statement of the uses to which it will
put the information and the connection between those uses and its
representational responsibilities under the Statute,Internal Revenue Service,
Washington, D.C, et al., 50 FLRA 661, 669
(1995). Once the union adequately states its particularized need,
it falls to the agency either to provide the information or to tell
the union why it will not do so.

The Respondent does not contend that the Union
failed to adequately state a particularized need for the requested
information. Rather, the Respondent relies solely on the
proposition that the Privacy Act prohibits the disclosure of the
information.

The Privacy Act, 5 U.S.C. §552a, states, in
pertinent part:

Definitions-For purposes of this
section-

* * *
*

(4)
the term "record" means any item,
collection, or grouping of information about an individual that is
maintained by an agency, including, but not limited to, his
education . . . and . . . employment history and that contains his
name, or the identifying number, symbol, or other identifying
particular assigned to the individual, such as a finger or voice
print or a photograph;

(5)
the term "system of records" means a
group of any records under the control of any agency from which
information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular
assigned to the individual;

* * *
*

(b)
Conditions of disclosure-No agency
shall

disclose any
record which is contained in a system of records by any means of
communication to any person, or to another agency, except pursuant
to a written request by, or with the prior written consent of, the
individual to whom the record pertains, unless disclosure of the
record would be- . . . .

There
then follows an enumeration of exceptions to the prohibition
against disclosure. The General Counsel has not invoked any of
those exceptions.

The Respondent's Response to the Union's Request for
Information

InFederal
Aviation Administration, 55 FLRA 254, 260
(1999) (FAA) the Authority held that an agency must articulate its
interest in non-disclosure at the time of its denial of the
information request and not for the first time at a hearing. In
its multiple responses to the Union's requests for information, the
Respondent did not specifically invoke the Privacy Act but only
stated that the disclosure of some of the information was
prohibited by law. Ironically, the only mention of the Act was by
the Union, which, in Glover's memorandum of December 4 (GC Ex. 4),
requested:

. . .
all documents allowed under the Privacy Act with some documents
sanitized as needed to protect the applicants privacy rights as
determined by the Supreme Court.

Although, as stated above, the Respondent did not
specifically mention the Privacy Act in its response to the Union's
request for information, it unequivocally stated its contention
that the disclosure of the information was prohibited by law. The
Union could have harbored no reasonable doubts that the Respondent
was referring to the Privacy Act.5/ Even if that were not so, the
language of the Statute is clearly to the effect that the
non-disclosure interests set forth in §7114(b)(4)(A) through (C)
need only be addressed if the disclosure of the information is not
prohibited by law.

I am
aware that, in at least one instance6/, an Administrative Law Judge
has applied the holding inFAAso as to preclude an untimely
reliance on the Privacy Act. Yet, he also found that the Privacy
Act did not cover the circumstances of that case and the Authority
affirmed the judge's decision on that basis without addressing the
applicability ofFAA.

The
Authority has never addressed the issue of the effect of an
untimely assertion of a Privacy Act defense. In view of the fact
that the Privacy Act contains an outright prohibition against
disclosure of certain types of information, it is unlikely, to say
the least, that the Authority would order the Respondent to violate
the Act, assuming that it applied in the first place.

It is
possible, however, that if an agency did not respond to an
information request and later invoked the Privacy Act, the
Authority would direct the agency to promptly respond to future
requests for information so that the union would at least be aware
of the agency's position and could consider an amendment of its
request. In the instant case, the evidence does not indicate, and
the General Counsel has not alleged, that the Respondent ignored
the Union's request for information.

The Application of the Privacy Act

InU.S. Dept. of
Transportation, Federal Aviation Administration, New York TRACON,
Westbury, New York, 50 FLRA 338, 345
(1995) (TRACON) the Authority set forth
an analytical framework for balancing an agency's Privacy Act
defense against the right of a union to obtain information
necessary to the performance of its representational duties.
According to that framework, an agency seeking to withhold records
must meet the same requirements as are applied to requests under
the Freedom of Information Act, 5 U.S.C. §552 (FOIA).
Specifically, when an agency contends that the requested
information falls under FOIA Exemption 6 as set forth in 5 U.S.C.
§552(b)(6)7/, it has the burden of
demonstrating (1) that the information requested is contained in a
"system of records" under the Privacy Act; (2) that disclosure of
the information would implicate employee privacy interests; and (3)
the nature and significance of those privacy interests. If the
agency meets its burden, the General Counsel must then

(1)
identify a public interest that is cognizable under FOIA; and (2)
demonstrate how disclosure of the requested information will serve
that public interest.

Although the Respondent has not specifically addressed
theTRACONfactors, the General Counsel does not contest the
self-evident proposition that the application packages of each of
the successful external candidates are "records" as defined in
§(a)(4) of the Privacy Act and that they are contained in a "system
of records" within the meaning of §(a)(5) of the Act. Thus, the
Respondent has met the first element of its burden of proof
underTRACON.

As to
the second element, information as to the educational background of
the successful external candidates is specifically included in the
definition of a "record" and is thus within the contemplation of
the Act. However, the proposition that even sanitized records
would not protect the candidates' privacy is far less clear. In
fact, the Authority has held that FOIA Exemption 6, and therefore
the Privacy Act, does not prohibit an agency from divulging
otherwise protected information in a redacted or sanitized
form,Heath
Care, 56 FLRA at 506.

In
contending that sanitized records would not protect the Privacy Act
interests of the successful candidates, the Respondent relies on
the fact that they are only eight in number and that the release of
the requested information would allow the Union to determine the
identity of each of the candidates. In support of this
proposition, the Respondent points to the fact that two of the
successful candidates have veteran's preference and that, of those
two veterans, one is male and the other female. Therefore, the
Respondent contends, an examination of the military status of the
candidates would allow the Union to match their educational
information with their identities. Furthermore, according to the
Respondent, "certain information" in the applications of the other
six candidates would betray their identities even if their records
were sanitized (Resp. Brief, pp. 10, 11).

An
examination of the evidence indicates that six of the successful
candidates have typically feminine first names (GC Ex. 2) and that
two of them have veteran's preference (GC. Ex. 6). However, there
is nothing in the record to tie the named candidates with their
military records, if any. There is certainly no evidence regarding
the mysterious other information cited by the Respondent. Finally,
I am confident that the parties can agree on the details of the
sanitizing of the records so as to eliminate any rational
possibility of the inadvertent disclosure of the educational
backgrounds of specific candidates. Accordingly, I have concluded
that the Respondent has not met the second element of its burden of
proof underTRACON.

While
educational material can be highly sensitive, it is not necessarily
so. According to Glover, the Union was not seeking a listing of
academic courses or of grades, but merely verification that certain
unnamed candidates had graduated from certain colleges with degrees
in "business, or science, or whatever" (Tr. 41). To be sure, the
Union did not express that limitation in its information requests,
but the Respondent did not inquire into such details. It is
possible that, if requested by the Respondent, the Union would have
accepted the records with the names and locations of the colleges
sanitized so as to further ensure that the candidates could not be
identified. In any event, the information requested by the Union
was not so sensitive as to outweigh its right to obtain it. Thus,
the Respondent has also failed to meet the third element of its
burden of proof underTRACON.

Although the Respondent has not directly challenged the
Union's statement of particularized need, it argues that the
information which it has already provided is sufficient. While the
Respondent provided much of the information requested by the Union,
it did not provide any information related to the educational
records of the successful candidates. As shown above, the
educational levels of the successful candidates were one of the
factors cited by the Respondent in defense of the selection
process. Therefore, information as to other factors in the
selection cannot make up for that deficiency.

The Merits of the Underlying Grievances

The
Respondent has devoted considerable effort to demonstrating that
its selection process was legitimate. While that may be true, it
is of no consequence in this case. It is, in the first instance,
for the Union to decide whether it has a strong enough case to go
forward and it is entitled to obtain all information necessary for
it to make an informed decision. InHealth Care Financing Administration, 56 FLRA 156, 159, 162 (2000) the Authority
recognized that, in stating its particularized need, the Union is
not required to describe the nature of the agency's alleged
misapplication or violation of policy, procedure, law or
regulation. The investigation of the possibility of such
violations is part of a union's representational responsibilities
and it need not take the agency's word as to pertinent facts. If a
union decides to proceed with a grievance, and it cannot be
settled, the agency may present its case to an arbitrator and may
eventually prevail. However, the agency may not deprive the union
of the facts necessary for it to make an independent decision as to
whether and how to proceed.

The
Respondent's Settlement Offer

Even if I
were to accept the dubious proposition that the Respondent's "last
chance" offer of settlement is admissible, there is absolutely no
evidence that such an offer was made and I certainly cannot take
official notice of such an offer. While the Authority encourages
the amicable settlement of disputes,American Federation of Government Employees, Local 2145 and
U.S. Department of Veterans Affairs Medical Center, Richmond,
Virginia, 44 FLRA 1055, 1061
(1992), such settlements are, by their very nature, voluntary. A
party rejects a settlement offer at the risk of a subsequent loss,
but the fact of the rejection has no bearing on its entitlement to
relief.

For the
foregoing reasons, I have concluded that the Respondent committed
unfair labor practices in violation of §7116(a)(1), (5) and (8) of
the Statute by failing and refusing to provide the Union with the
information which the Union requested on December 6, 2006, and
thereafter concerning the candidates selected for the position of
Claims Examiner. Accordingly, I recommend that the Authority adopt
the following Order:

ORDER

Pursuant to
§2423.41(c) of the Rules and Regulations of the Authority and §7118
of the Federal Service Labor-Management Relations Statute
(Statute), it is hereby ordered that the U.S. Railroad Retirement
Board, Chicago, Illinois (Respondent), shall:

1. Cease and
desist from:

(a)
Failing and refusing to furnish the American Federation of
Government Employees, Local 375, AFL-CIO (Union) with: (1) the
redacted application materials submitted by the eight candidates
who were selected by the Respondent as Claims Examiners in December
of 2006; and (2) the redacted copies of any interview scores and
reference checks conducted by the Respondent regarding the
aforesaid eight candidates.

(b)
Interfering with, restraining or coercing its employees in the
exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.

2. Take the
following affirmative action:

(a)
Provide the Union with (1) the redacted application materials
submitted by the eight candidates who were selected by the
Respondent as Claims Examiners in December of 2006; and (2) the
redacted copies of any interview scores and reference checks
conducted by the Respondent regarding the aforesaid eight
candidates.

(b) Post
at all of its facilities where bargaining unit employees
represented by the Union are located copies of the attached Notice
on forms to be furnished by the Authority. Upon receipt of such
forms they shall be signed by the Chairman of the Respondent, and
shall be posted and maintained for 60 consecutive days thereafter
in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced or covered by any other material.

(c)
Pursuant to §2423.41(e) of the Rules and Regulations of the
Authority, notify the Regional Director of the Chicago Region,
Federal Labor Relations Authority, in writing, within 30 days of
the date of this Order, as to what steps have been taken to
comply.

Issued,
Washington, DC, September 11, 2007

________________________________

PAUL B.
LANG

Administrative Law Judge

NOTICE TO
ALL EMPLOYEES

POSTED BY
ORDER OF

THE FEDERAL
LABOR RELATIONS AUTHORITY

The Federal
Labor Relations Authority has found that the U.S. Railroad
Retirement Board, Chicago, Illinois, violated the Federal Service
Labor-Management Relations Statute and has ordered us to post and
abide by this Notice.

WE HEREBY
NOTIFY OUR EMPLOYEES THAT:

WE WILL
NOTfail or refuse to furnish
the American Federation of Government Employees, Local 375, AFL-CIO
(Union) with: (1) the redacted application materials submitted by
the eight candidates who were selected as Claims Examiners in
December of 2006; and (2) the redacted copies of any interview
scores and reference checks regarding the aforesaid eight
candidates.

WE WILL
NOT,in any like or related
manner, interfere with, restrain or coerce our employees in the
exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.

WE
WILLprovide the Union with
(1) the redacted application materials submitted by the eight
candidates who were selected as Claims Examiners in December of
2006; and (2) the redacted copies of any interview scores and
reference checks regarding the aforesaid eight
candidates.

______________________________

(Agency)

Dated:
______________ By: ______________________________

(Signature) (Title)

This Notice
must remain posted for 60 consecutive days from the date of
posting, and must not be altered, defaced, or covered by any other
material.

If employees
have any questions concerning this Notice or compliance with its
provisions, they may communicate directly with the Regional
Director, Chicago Regional Office, whose address is: Federal Labor
Relations Authority, 55 West Monroe Street, Suite 1150, Chicago, IL
60603-9729, and whose telephone number is:
312-886-3465.